SINCE late last year, Bersatu realised that it had a problem. Six of its MPs did not quit as members – which would have caused them to cease to be MPs under Article 49A(1)(a)(i) of the Federal Constitution – but gave their support to Prime Minister Datuk Seri Anwar Ibrahim.
The six MPs did not fit in any of the then existing boxes in Bersatu’s party constitution which would end their membership and lead to fresh elections for their parliamentary seats.
There was a “loophole”, so to speak. The six MPs continue to keep their parliamentary seats and Bersatu membership despite backing Anwar as PM, as they did not quit the party or join other parties.
Bersatu wanted them to lose their parliamentary seats but expelling them would not result in fresh elections under Article 49A(2)(c) of the Federal Constitution.
So Bersatu held an extraordinary general meeting on March 2, where all the party delegates present unanimously voted to change the party’s constitution in order to plug the loophole.
Bersatu decided to add three sub-clauses (Articles 10.4, 10.5, 10.6), including the new clause that any Bersatu members, who are MPs in the Dewan Rakyat or are state legislative members and who do not comply with the Bersatu supreme council’s written orders to them, are considered to have their party membership ceased immediately.
The sub-clauses become the party’s governing law after the “insubordination” of the six MPs. (The first of the six made the declaration of support to Anwar as PM on October 12, 2023, while the sixth MP declared the same on January 24, 2024)
It is a rule of construction that a statute should not be interpreted retrospectively to impair an existing right or obligation, unless such a result is unavoidable by reason of the language used in the statute.
A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability, in regard to events already past.
So, amendments to the law do not have retrospective effect.
Insubordination that ceases the six MPs’ party membership must therefore be insubordination to Bersatu supreme council’s written orders to them under the newly inserted Article 10.5 of the party constitution.
The six MPs may have a basis to complain that Article 10.5 has been used to take away or impair their vested rights acquired under the party’s then laws, or create a new obligation or impose a new duty, or attach a new disability, in regard to events already past (their support for Anwar).
The Dewan Rakyat speaker will have to establish that, which he is constitutionally mandated to do without reference to the Kelantan speaker’s decision. – June 22, 2024
Hafiz Hassan reads Scoop